Citation Nr: 1002850
Decision Date: 01/20/10 Archive Date: 02/01/10
DOCKET NO. 05-30 118 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an evaluation in excess of 30 percent for
tension headaches.
2. Entitlement to an evaluation in excess of 10 percent for
degenerative joint disease, lumbosacral spine (low back
disability).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Fitch, Counsel
INTRODUCTION
The Veteran served on active duty from September 1970 to
September 1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2004 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida that, in pertinent part,
increased the evaluation of the Veteran's service-connected
low back disability from noncompensable to 10 percent
disabling, and continued the noncompensable evaluation for
the Veteran's service-connected tension headaches. The
Veteran filed a timely appeal of these determinations to the
Board. The Veteran's claims file was subsequently
transferred to the Montgomery, Alabama RO.
In May 2005, the RO increased the evaluation of the Veteran's
service-connected tension headaches to 30 percent disabling.
Because the assigned evaluations of the Veteran's service-
connected disabilities do not represent the maximum ratings
available for these disabilities, the Veteran's claims
challenging these evaluations remains in appellate status.
See AB v. Brown, 6 Vet. App. 35 (1993).
FINDINGS OF FACT
1. The Veteran's service-connected tension headaches are not
manifested by very frequent completely prostrating and
prolonged attacks productive of severe economic
inadaptability.
2. The Veteran's service-connected low back disability is
not manifested by forward flexion of the thoracolumbar spine
greater that 30 degrees but not greater that 60 degrees, a
combined range of motion of the thoracolumbar spine not
greater than 120 degrees, muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis manifested by complaints of pain and mild limitation
of motion; nor does the medical evidence indicate
incapacitating episodes having a total duration of at least
two weeks but less than four weeks during the past 12 months.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent
for tension headaches are not met. 38 U.S.C.A. §§ 1155,
5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.159, 4.1, 4.3, 4.124a, Part 4, Diagnostic Code
8100 (2009).
2. The criteria for an evaluation in excess of 10 percent
for the Veteran's low back disability have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp
2009); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a,
Diagnostic Codes 5237, 5243 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented at 38 C.F.R. § 3.159, amended VA's duties to
notify and to assist a claimant in developing the information
and evidence necessary to substantiate a claim. Under
38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide.
By way of letters dated in May 2004 and April 2009, the
Veteran was furnished notice of the type of evidence needed
in order to substantiate the claims. The Veteran was also
generally informed that he should send to VA evidence in his
possession that pertains to the claims and advised of the
basic law and regulations governing the claims, the
cumulative information and evidence previously provided to VA
(or obtained by VA on the Veteran's behalf), and provided the
basis for the decisions regarding the claims.
The Veteran was provided with adequate notice of the evidence
which was not of record, additional evidence that was
necessary to substantiate the claims, and he was informed of
the cumulative information and evidence previously provided
to VA, or obtained by VA on his behalf.
For the reasons above the Board finds that VA substantially
complied with the specific requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate the claim and the relative duties of VA and the
claimant to obtain evidence); Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies the
VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the
notice requirement, pertaining to the evidence in the
claimant's possession or a similar request to that effect).
In this context, it is well to observe that VCAA requires
only that the duty to notify be satisfied, and that claimants
be given the opportunity to submit information and evidence
in support of their claims. Once this has been accomplished,
all due process concerns have been satisfied. See Bernard v.
Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet.
App. 553 (1996).
In addition, where a claim involves basic entitlement to
service connection, the United States Court of Appeals for
Veterans Claims (Court) held that the VCAA requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
of the elements of a claim for service connection, including
notice that a disability rating and effective date will be
assigned if service connection is awarded. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
Despite the defective notice provided to the Veteran on these
latter two elements, however, the Board finds no prejudice to
the Veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown. In this regard, as the
Board concludes hereinbelow that the preponderance of the
evidence is against the Veteran's claims, any questions as to
the appropriate effective date to be assigned are rendered
moot.
The Board also finds that VA has made reasonable efforts to
assist the Veteran in obtaining evidence necessary to
substantiate the claims. 38 U.S.C.A. § 5103A. In
particular, the information and evidence associated with the
claims files consists of the Veteran's service records, post-
service treatment records and reports, VA examinations dated
in June 2004, and written statements submitted by the Veteran
and his representative in support of the claims. In this
regard, the Board notes that the Veteran was scheduled for
updated VA examinations to take place on December 6, 2008.
The Veteran, however, failed to report for the examinations
and, after notice of this failure was noted in the June 2009
supplemental statement of the case, the Veteran has not
expressed interest in having these examinations rescheduled.
When a veteran fails without good cause to report for a
necessary VA examination requested by VA in conjunction with
a claim, VA is not obliged to attempt to provide another.
Examples of good cause include, but are not limited to, the
illness or hospitalization of the claimant, death of an
immediate family member, etc. 38 C.F.R. § 3.655(b). While
VA has a duty to assist the veteran in the development of his
claim, the veteran has a duty to cooperate with VA. See Wood
v. Derwinski, 1 Vet. App. 190 (1991). To date, the Veteran
and his representative have not offered an explanation as to
why the Veteran failed to appear for the scheduled VA
examinations. The consequence in this case of the Veteran's
failure without good cause to report for the VA examination
is that his disability and other claims must be rated on the
basis of the other relevant evidence on file. 38 C.F.R. §
3.655(b). The Board concludes that VA has no remaining duty
under the VCAA to provide medical examinations in conjunction
with the Veteran's claims. The Board also notes that in
October 2005, the Veteran submitted correspondence reflecting
that he had hired counsel to assist him in securing Social
Security Administration (SSA) disability benefits. Since
that time, the Veteran has not indicated that he is in
receipt of SSA disability benefits, to include any benefits
due to his service-connected disabilities. The Veteran has
not responded to an April 2009 VA notice with any additionl
evidence, and did not return telephone messages left for him
on two occasions by VA personnel in May 2009. To date, the
Veteran has not identified any additional evidence to support
his increased rating claims. Thus, the Board has determined
that a Remand to retrieve any possible records or
applications related to SSA is unnecessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c); see Golz v. Shinseki, No.
2009-7039 (Fed. Cir. January 4, 2010).
Based on the foregoing, the Board concludes that there is no
identified evidence that has not been accounted for with
respect to the Veteran's claims and that, under the
circumstances of this case, VA has satisfied its duty to
assist the Veteran. Accordingly, further development and
further expending of VA's resources is not warranted. See
38 U.S.C.A. § 5103A.
II. Increased ratings
Disability evaluations are determined by comparing a
Veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more nearly
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. See 38 C.F.R. § 4.7.
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the Veteran. See
38 C.F.R. § 4.3. The Veteran's entire history is reviewed
when making disability evaluations. See 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
Where an increase in the level of a service-connected
disability is at issue, the primary concern is the present
level of disability. Francisco v. Brown, 7 Vet. App. 55
(1994). However, where the question for consideration is the
propriety of the initial evaluation assigned after the grant
of service connection, evaluation of the medical evidence
since the effective date of the grant of service connection
and consideration of the appropriateness of "staged
ratings" is required. See Fenderson v. Brown, 12 Vet. App.
at 126. In this regard, the Board also acknowledges that a
claimant may experience multiple distinct degrees of
disability that might result in different levels of
compensation from the time the increased rating claim was
filed until a final decision is made. Hart v. Mansfield, 21
Vet. App. 505 (2007).
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with 38
C.F.R. § 4.25. However, the evaluation of the same
"disability" or the same "manifestations" under various
diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant
may not be compensated twice for the same symptomatology as
"such a result would overcompensate the claimant for the
actual impairment of his earning capacity." Brady v. Brown,
4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. §
1155). This would result in pyramiding, contrary to the
provisions of 38 C.F.R. § 4.14. However, if a Veteran has
separate and distinct manifestations attributable to the same
injury, they should be compensated under different diagnostic
codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning
v. Brown, 4 Vet. App. 225, 230 (1993).
The assignment of a particular diagnostic code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
diagnostic code may be more appropriate than another based on
such factors as the Veteran's relevant medical history, the
current diagnosis, and demonstrated symptomatology. Any
change in diagnostic code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2
Vet. App. 625, 629 (1992). Where a Veteran has been
diagnosed as having a specific condition and the diagnosed
condition is not listed in the Ratings Schedule, the
diagnosed condition will be evaluated by analogy to closely-
related diseases or injuries in which not only the functions
affected, but the anatomical localizations and
symptomatology, are closely analogous. 38 C.F.R. § 4.20.
When evaluating musculoskeletal disabilities, VA may consider
granting a higher rating in cases in which functional loss
due to pain, weakness, excess fatigability, or incoordination
is demonstrated, and those factors are not contemplated in
the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45,
4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In
determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for
consideration. Id. However, in that regard, the Board notes
that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45,
should only be considered in conjunction with the Diagnostic
Codes predicated on limitation of motion. Johnson v. Brown,
9 Vet. App. 7 (1996).
The provisions of 38 C.F.R. § 4.40 state that a disability
affecting the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence of
part, or all, of the necessary bones, joints and muscles, or
associated structures. See 38 C.F.R. § 4.40.
The Board notes that the intent of the rating schedule is to
recognize painful motion with joint or periarticular
pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint. 38 C.F.R. § 4.59.
Within this context, a finding of functional loss due to pain
must be supported by adequate pathology and evidenced by the
visible behavior of the claimant. Johnston v. Brown, 10 Vet.
App. 80, 85 (1997). The Board notes, however, that the Court
has held that 38 C.F.R. § 4.40 does not require a separate
rating for pain but rather provides guidance for determining
ratings under other diagnostic codes assessing
musculoskeletal function. See Spurgeon v. Brown, 10 Vet.
App. 194 (1997).
A. Tension headaches
The Veteran is currently assigned a 30 percent evaluation for
his headache disorder under Diagnostic Code 8100 for migraine
headaches, which provides for a 50 percent rating with very
frequent completely prostrating and prolonged attacks
productive of severe economic inadaptability; 30 percent with
characteristic prostrating attacks occurring on average of
once a month over the last several months; 10 percent with
characteristic prostrating attacks averaging one in two
months over the last several months, and a noncompensable
evaluation with less frequent attacks. 38 C.F.R. § 4.124a,
Diagnostic Code 8100.
The medical evidence in this case consists primarily of a VA
examination dated in June 2004 and VA medical treatment
notes.
The June 2004 examiner indicated that the Veteran's claims
file had been reviewed in connection with the examination and
report. The Veteran was noted to have a history of chronic
headaches that have gotten progressively worse. The Veteran
reported characteristic throbbing or sharp pain, with pain
behind the eyes with associated watering of the eyes and
nose. The headaches were noted to be associated with
photophobia and phonophobia, and they were indicated to come
in clusters. Each headaches would last for approximately 15
minutes. The Veteran reported that sometimes the headaches
will come several times a day for a few days and then will go
away for a few weeks or a few months. The Veteran reported
that the headaches had been worse in the months prior to the
examination. The Veteran was indicated to take medication in
connection with his condition, that he reported helps a lot.
After examination, the Veteran was diagnosed with cluster
headaches. The examiner stated that the Veteran had mild
functional impairment due to his headaches.
The Veteran's outpatient treatment records also note a
history of headaches. In one note, the Veteran was noted to
take over-the-counter Tylenol pm as occasion requires. A
March 2004 treatment report indicated that the Veteran had
had a headache for one month at that time, with sharp
stabbing sensation in both eyes. He was referred to the
emergency room for more thorough treatment. More recent
treatment records indicate continued treatment for headaches,
but no symptoms consistent with very frequent completely
prostrating and prolonged attacks productive of severe
economic inadaptability.
Based on the foregoing, the Board finds that an evaluation in
excess of 30 percent is not warranted in this case. In order
to warrant a higher evaluation, the medical evidence must
indicate that the Veteran's headaches are very frequent
completely prostrating and with prolonged attacks productive
of severe economic inadaptability. In this case, the medical
evidence contained in the Veteran's claims file, since the
date of his claim for increase, does not indicate that the
Veteran's condition rises to this level.
The Board finds no basis for the assignment of an evaluation
in excess of 30 percent.
B. Low back disability
The Veteran's back disability is currently evaluated as 10
percent disabling under Diagnostic Code 5237, which is part
of the General Rating Formula for Diseases and Injuries of
the Spine. 38 C.F.R. § 4.71a.
This formula provides that, with or without symptoms such as
pain (whether or not it radiates), stiffness, or aching, in
the area of the spine affected by the residuals of injury or
disease:
a 20 percent evaluation is warranted where there is
forward flexion of the thoracolumbar spine greater that
30 degrees but not greater that 60 degrees; or, the
combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, muscle spasm or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis,
a 40 percent evaluation is warranted where there is
forward flexion of the thoracolumbar spine 30 degrees or
less; or favorable ankylosis of the entire thoracolumbar
spine,
a 50 percent evaluation is warranted where there is
unfavorable ankylosis of the entire thoracolumbar spine,
and
a 100 percent evaluation is warranted where there is
unfavorable ankylosis of the entire spine. Id.
Any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, are
separately evaluated under an appropriate diagnostic code.
Id., Note (1).
The Veteran's disability could also be evaluated under
Diagnostic Code 5243. Under this code, evaluation of
intervertebral disc syndrome (preoperatively or
postoperatively) is to be made either on the total duration
of incapacitating episodes over the past 12 months or by
combining under 38 C.F.R. § 4.25 separate evaluations of its
chronic orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. When rating based on
incapacitating episodes, if there are incapacitating episodes
having a total duration of at least two weeks but less than
four weeks during the past 12 months, a 20 percent rating is
warranted. If there are incapacitating episodes having a
total duration of at least four weeks but less than six weeks
during the past 12 months, a 40 percent rating is warranted.
If there are incapacitating episodes having a total duration
of at least six weeks during the past 12 months, a maximum 60
percent rating is warranted.
Note 1 to 38 C.F.R. § 4.71a, Diagnostic Code 5243, provides
that an incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so.
Note 2 to 38 C.F.R. § 4.71a, Diagnostic Code 5243, provides
that when rating on the basis of chronic manifestations, the
orthopedic disabilities will be rated under the most
appropriate orthopedic diagnostic code or codes and the
evaluation of neurologic disabilities will be done separately
using the most appropriate neurologic diagnostic code or
codes.
The medical evidence regarding the Veteran's back disability
consists primarily of post-service treatment records and a VA
examination dated in June 2004.
The June 2004 VA examiner indicated that the Veteran has been
diagnosed with degenerative joint disease at L4-5 and
indicated that he has generalized arthralgias. Upon
examination, the Veteran was indicated to have tenderness
over the right sacroiliac joint. He could forward flex 85
degrees, and backwards flex 10 degrees. The Veteran was also
noted to have 40 degrees left lateral flexion, and 20 degrees
right lateral flexion. He had normal curvature of the spine
and his neurologic examination was intact. The Veteran was
diagnosed with degenerative joint disease of the lumbosacral
spine, with a right sacroiliac pain. The examiner stated
that there were no signs of degenerative disc disease or
radiculopathy. He was indicated to have moderate loss of
function due to pain, and good range of motion.
The Veterans medical treatment records do not indicate
ongoing treatment for a back disability, although
degenerative joint disease of the lumbar spine is noted in
the Veteran's list of medical problems and the Veteran was
noted to have back pain.
Based on the foregoing, the Board finds that a higher
evaluation for the Veteran's service-connected back
disability is not warranted.
In order to warrant a higher evaluation under the new General
Rating Formula for Diseases and Injuries of the Spine, there
must be competent medical evidence of forward flexion of the
thoracolumbar spine greater that 30 degrees but not greater
that 60 degrees, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees, or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. Here, there is no objective
medical evidence of record to reflect that the Veteran has
forward flexion of the thoracolumbar spine of 60 degrees or
less or a combined range of motion of 120 degrees or less.
Nor does the medical evidence show muscle spasm or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis. Lewis v. Derwinski, 3 Vet. App. 259
(1992).
The Board has also considered the criteria for rating
intervertebral disc syndrome, however, the objective evidence
reflects that the Veteran does not have intervertebral disc
syndrome. There have been no findings of spasms or
neurological symptoms, and there were no neurologic findings
on physical examination. Therefore, the Board does not find
that the Veteran's medical records show persistent symptoms
of neuropathy or other neurological findings so as to arrive
at the diagnosis of intervertebral disc disease.
Nevertheless, assuming for the sake of argument that the
Veteran's current disability did involve radiculopathy and
could be defined as intervertebral disc disease, there is no
evidence that the Veteran had incapacitating episodes of at
least 2 weeks but less than 4 weeks. As such, a disability
rating in excess of 10 percent is not warranted under the
formula for rating intervertebral disc syndrome based on
incapacitating episodes.
With regard to establishing loss of function due to pain, it
is necessary that complaints be supported by adequate
pathology and be evidenced by the visible behavior of the
claimant. 38 C.F.R. § 4.40. The Board finds that the
effects of pain reasonably shown to be due to the Veteran's
service-connected back disability are contemplated in the
assigned 10 percent rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca.
A higher evaluation for pain is not for assignment.
Spurgeon.
In this regard, the Board observes that under the Rating
Schedule, the general rating formula notes that the rating
criteria are to be applied with or without symptoms such as
pain, stiffness, or aching in the area of the spine affected
by residuals of injury or disease. Other than the Veteran's
report of pain, there was no evidence of visible behavior or
adequate pathology to suggest that any additional functional
impairment was commensurate with the criteria necessary for
an evaluation in excess of 10 percent. It is acknowledged
that the Veteran has subjective complaints of pain affecting
his ability to engage in certain activities. However, "a
finding of functional loss due to pain must be supported by
adequate pathology and evidenced by the visible behavior of
the claimant." Johnston v. Brown, 10 Vet. App. 80, 85
(1997).
Finally, as noted above, there is no objective medical
evidence throughout the appeal period showing that the
Veteran has a neurological impairment stemming out of the
service-connected back disability. As such, a separate
rating is not warranted. See Note 2 to 38 C.F.R. § 4.71a,
Diagnostic Code 5243.
Given the facts above, the Veteran's back disability does not
warrant an initial rating in excess of 10 percent under any
of the pertinent rating criteria. The evidence is not so
evenly balanced as to allow for the application of reasonable
doubt. 38 U.S.C.A. § 5107(b).
In view of the holding in Hart, and, based upon the record,
the Board finds that at no time since the Veteran filed his
claim for a higher evaluation has the disability on appeal
been more disabling than as currently rated under the present
decision of the Board.
C. Other considerations
The Board also notes that the record does not establish that
the schedular criteria are inadequate to evaluate the
Veteran's disabilities so as to warrant assignment of higher
evaluations on an extra-schedular basis. In this regard, the
Board notes that there is no showing that the Veteran's
disabilities have resulted in marked interference with
employment. In addition, there is no showing that the
disabilities have necessitated frequent periods of
hospitalization, or that they have otherwise rendered
impractical the application of the regular schedular
standards. In the absence of evidence of such factors, the
Board finds that the criteria for submission for assignment
of extra-schedular ratings pursuant to 38 C.F.R. §
3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App.
337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the
Court held that a total rating based upon individual
unemployability due to service-connected disability (TDIU)
claim is part of an increased rating claim when such claim is
raised by the record. The Court further held that when
evidence of unemployability is submitted at the same time
that the Veteran is appealing the initial rating assigned for
a disability, the claim for TDIU will be considered part and
parcel of the claim for benefits for the underlying
disability. Id. In this case, the Board finds that a claim
for a TDIU is not raised by the record as the evidence of
record fails to show that the Veteran is unemployable due to
his service-connected disabilities.
Here, the Board notes that where the schedular rating is less
than total, a total disability rating for compensation
purposes may be assigned when the disabled person is unable
to secure or follow a substantially gainful occupation as a
result of service-connected disabilities, provided that, if
there is only one such disability, this disability shall be
ratable at 60 percent or more, or if there are two or more
disabilities, there shall be at least one ratable at 40
percent or more, and sufficient additional disability to
bring the combined rating to 70 percent or more. 38 C.F.R.
§§ 3.340, 3.341, 4.16(a).
In exceptional circumstances, where the Veteran does not meet
the aforementioned percentage requirements, a total rating
may nonetheless be assigned upon a showing that the
individual is unable to obtain or retain substantially
gainful employment. 38 C.F.R. § 4.16(b).
In this case, the Veteran does not meet the numerical
criteria set forth above, as his total combined evaluation
for his service-connected disabilities is 50 percent
disabling, with the highest evaluation being 30 percent
disabling. And, while the Veteran was noted in the June 2004
back examination to be unemployed, the Veteran is also noted
to be retired from the military, and the Veteran's medical
records do not indicate that he is otherwise unemployable due
to his service-connected disabilities.
Therefore, the Board finds that no further consideration of a
TDIU is warranted.
ORDER
An evaluation in excess of 30 percent for tension headaches
is denied.
An evaluation in excess of 10 percent for degenerative joint
disease, lumbosacral spine, is denied.
____________________________________________
M.W. KREINDLER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs